AI-generated child porn is almost certainly illegal. The exact definition of child porn and AI-generation will vary by jurisdiction. Under Wisconsin Statute 948.125, anyone who is found to receive, distribute, produce, possess, or access obscene material that depicts a child engaging in sexually explicit conduct is penalized with a Class D felony.

Is AI-Generated Child Porn Illegal?

AI-generated child porn is almost certainly illegal. However, the exact specifics of what it means to be AI-generated as well as the definition of child porn will vary by jurisdiction. Child porn is now often called child sexual abuse material or CSAM. The penalty for an adult possessing virtual child pornography is a Class D felony.

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Wisconsin's Position on AI Child Porn

The Wisconsin statute 948.125 covers any visual depiction of child porn including AI child porn. In fact, this statute covers any visual depiction of a child, whether that depiction is of an actual child or not. It covers anything that isn’t a photograph that looks like a real child, whether the likeness to a real child was intentional or not. This includes mediums such as paintings, drawings, or computer renderings.

Wis. Stat. 948.125 has a couple of parts. It applies to anyone who receives, distributes, produces, possesses, or accesses obscene material that contains a depiction of a purported child engaging in sexually explicit conduct. This includes any action done with the intent to view a depiction of a child engaging in sexually explicit actions. However, the statute limits its application to those who knew or should have known that they received, distributed, produced, or accessed the material containing a depiction of a purported child engaging in sexually explicit conduct.

Definition of Child Pornography

The definition of child pornography is found in Wis. Stat. 948.12 and 948.01(7). Statute 948.12 defines child pornography as any depiction of an individual under the age of 18 engaged in sexually explicit conduct. Statute 948.01(7) defines sexually explicit conduct in rather graphic terms that can be summarized as any contact with an intimate part of an individual’s body. It also includes “lewd exhibition of intimate parts.”

Could You Be Arrested for AI Child Porn?

Yes, having or accessing child porn created through AI generation is a crime someone could be arrested for. As mentioned above, even if that AI-generated image is not a depiction of an actual child, it is still illegal.

Legal Defenses for AI Child Pornography Charges

There are a couple of standard defenses for possession of child pornography. One is attacking whether the images depict children. The state needs to prove that the individuals depicted are under 18 years old. This can be difficult as it is impossible to tell an individual’s age from their appearance.

The second key line of defense is whether the activity depicted is sexually explicit conduct. This one is likely most effective when the sexually explicit conduct displayed does not include any physical contact. The most common defense is lack of possession or knowing possession. There are various methods—such as torrenting, downloading, or accessing content–where unintended content is also transmitted.

The definition for virtual or AI child pornography has an additional element, which gives it an additional defense. The sexually explicit conduct must also be “obscene.” The definition of “obscene” clarifies that the depiction is against the “contemporary community standards,” is “patently offensive,” and lacks serious literary, artistic, political, educational, or scientific value, if taken as a whole. However, this defense can be difficult to pursue and would certainly require the help of an attorney.